Maintaining Enron myths

natwest%20three%20022008.jpgEver wonder how the mainstream media maintains Enron-related myths?
In reporting on the sentencing hearing later this week in the Enron-related case of the three former UK bankers dubbed “the NatWest Three” (prior posts here), the Chronicle’s Kristen Hays observes the following:

In their plea deals, the trio admitted they committed wire fraud in a scheme with Fastow and his top lieutenant, Michael Kopper, to cheat their former London employer, Greenwich NatWest. The bank, which is now part of the Royal Bank of Scotland, had a stake in a Fastow-created partnership and the three men advised their employer to sell that interest for $1 million when they knew its value had grown.
Fastow arranged for Enron to pay more than $19 million for Greenwich NatWest’s stake and divided most of the cash among himself, Kopper, the British bankers and others.

Actually, as noted in this earlier analysis of the NatWest Three plea deal, the following is what the former bankers actually pled to:

So, after years of litigation, the NatWest Three pled guilty to a single count of wire fraud. The basis of the guilty plea is that the three bankers failed to disclose to NatWest the [$250,000] option that they had taken from Fastow to purchase a portion of NatWest’s interest in Swap Sub at the time that NatWest sold that interest to Southampton [for $1 million]. Importantly, the basis of the plea deal is not that the NatWest Three knew and didn’t tell NatWest that the value of the bank’s Swap Sub interest was going to skyrocket soon after Southampton bought it as a result of Fastow completing the unwind transaction with Enron.

Read about the real NatWest Three deal.

A lingering question about Refco

refco%20021608.jpgSo, Refco’s former CEO and chairman Phillip Bennett pled guilty late Friday in a Manhattan federal court to fraud and other charges stemming from the 2005 collapse of the company (previous posts here). Peter Henning analyzes the plea here.
Bennett’s guilty plea appears to have been prompted by the plea deal last December of Santo C. Maggio, Refco’s former executive vice president, who was expected to testify against Bennett and the other Refco-related criminal defendants, former Refco executives Robert C. Trosten and Tone N. Grant, and former Mayer Brown partner and primary Refco outside counsel, Joseph P. Collins. Trosten and Grant’s case is scheduled to go to trial in March.
Although not entirely unexpected, Bennett’s guilty plea nevertheless leaves hanging the most intriguing question about the entire Refco affair:
Why on earth did Bennett ever take Refco public?
Let’s recall the story. Refco — a well-known Wall Street commodities and futures trading broker — filed a chapter 11 case in mid-October 2005 a week after the company announced that a $430 million debt owed to the company by a firm controlled by Bennett had been concealed and then repaid by Bennett. Refco’s board placed Bennett on indefinite leave and he was arrested on federal securities fraud charges shortly thereafter.

Continue reading

The DOJ loses another Enron criminal case

Kevin%20howard021208.jpgAs expected, the Fifth Circuit denied the government’s appeal yesterday of U.S. District Judge Vanessa Gilmore’s decision to vacate the final count of the government’s odious five count conviction against former Enron Broadband CFO Kevin Howard. The Fifth Circuit’s decision affirmed Judge Gilmore’s decision to vacate the only remaining count of Howard’s conviction on which the prosecution had not already tossed in the towel. Ellen Podgor provides her usual excellent analysis of the decision.
With the Fifth Circuit’s decision, the stage is now set for the Department of Justice’s decision as to whether to try Howard for the third time on the same charges. One would hope that prosecutors would leave well enough alone, but don’t count on it. This is an Enron-related prosecution, after all.
Meanwhile, far from Houston in Hartford, the DOJ continues to assert essentially the same case against three former General Reinsurance executives and an AIG executive that has been thrown out against Howard and also the four former Merrill Lynch executives in the equally reprehensible Nigerian Barge case (see also here and here). The defendants represented their company in the negotiation of a legitimate business transaction that was evidenced by a written agreement that provides that all agreements or representations between the parties that are not contained in the written agreement are void and unenforceable. But that’s not what really happened, says the prosecution. The defendants entered into “secret side deals” that changed the risk allocation of the written agreement and eviscerated the company’s accounting treatment of the transaction. Pay a couple of witnesses to testify against the defendants by cutting favorable plea deals with them and “presto” — we’ve got a criminal case against some wealthy executives. Shattered lives, families and careers be damned.
This process is not one that a truly civil society would embrace.

Criminalizing Capitalism

handcuffs%20121308.gifIf I didn’t know better, I’d say that Nicole Gelinas has been reading (H/T Professor Bainbridge) my blog over the past several years:

[I]n the end, Sarbanes-Oxley has just made it easier for ambitious government attorneys to criminalize bad business judgment and complex accounting in hindsight. Further, in their focus on strengthening legal enforcement, the feds have passed up opportunities to create commonsense protections for investors. Worse still, the government has instilled investors with false confidence by implying that they can rely on prosecutors, not prudence, to protect their market holdings. Now the housing and mortgage meltdownówhich could hurt the economy far more than Enron didóis reminding investors that no law or regulation can protect them from economic disruption. [. . .]
As the economy heads into a possible downturn, calls will grow for someone to pay for the pain of another burst bubbleóand for yet more onerous rules, regulations, and prosecutions of businesses to prevent future crises. But no government mandate or punishment, however harsh, will stop companies and markets from being imperfect collections of fallible human beings. At the end of a decade of financial surprises, that may be the most enduring lesson of all.

As I noted here almost three years ago and have reiterated many times, the truth about Enron is that no massive conspiracy existed, that Jeff Skilling and Ken Lay were not intending to mislead anyone and that the company was simply a highly-leveraged, trust-based business with a relatively low credit rating and a booming commodities trading operation. Although there is nothing inherently wrong with such a business model, it turned out it to be the wrong one to survive amidst the perilous post-tech bubble, post-9/11 market conditions. Thus, when the markets were spooked by revelations of the embezzlement of several millions by Enron’s CFO and his relative few minions, the company failed.
However, Gelinas is spot on in observing that Enron’s failure was not a market failure. That Jeff Skilling failed to predict that Enron would fail is not a crime. Unlike his main accusers Andy Fastow and Ben Glisan, Skilling didn’t embezzle a dime from Enron. Did he tirelessly advocate on behalf of this innovative company? Sure, but since when is it a crime for a CEO to be optimistic — even overly-optimistic — about his company?
The primary justification for the absurdly-long sentence handed to Skilling is the plight of the innocent employees and investors who lost their nest eggs when Enron went bankrupt. But the main reason that those nest eggs ever had value in the first place was because Skilling had transformed Enron into the world’s leading energy risk management company through the creative use of futures and options contracts to hedge price risk for natural gas producers and industrial consumers.
Although nothing is wrong with compassion for folks who lose money on an investment, rarely is it mentioned in the Enron morality play that many of those investors who lost their nest egg when Enron failed were imprudent in their investment strategy. They should have diversified their Enron holdings or bought a put on their Enron shares that would have allowed them to enjoy the rise in Enron’s stock price while being protected by a floor in that share price if things did not go as planned. Even though virtually all of those innocent Enron investors carry insurance on their homes and cars, one can only speculate why they didn’t attempt to hedge the risk of their investment in Enron stock. Most likely, many of the investors simply did not understand how Enron’s risk management services created their wealth in the first place.
Beyond the shattered lives, families and careers, the real tragedy of the post-Enron demonization of business is that it has distracted us from examining the tougher issues of what really causes the demise of a company such as Enron and understanding how such a company can be structured to survive in even the worst market conditions. It’s easy to throw a good and decent man such as Jeff Skilling in prison for most of the rest of his life, throw away the keys and simply attribute Enron’s failure to him. It’s a lot harder to try and understand what really happened.

Lerach’s sentence

Lerach%20021208.jpgFormer plaintiff’s class action securities lawyer Bill Lerach was sentenced yesterday to two years in prison, fined $250,000 and ordered to complete 1,000 hours of community service (Peter Lattman’s W$J interview of Lerach is here and more W$J coverage of blawgosphere reaction is here). Lerach pled guilty last September to a felony count of conspiring to obstruct justice and to submit false testimony in federal judicial proceedings after being investigated by the Department of Justice for the better part of a decade.
My posts from over the years on Lerach and the investigation into his practice are here, and my latest posts summarizing my views on his plea deal are here and here. Along similar lines to the thoughts expressed in this post from yesterday, Larry Ribstein cautions those who take satisfaction in watching Lerach’s fall from the pinnacle of the plaintiff’s class action securities bar:

What many call their ìgreedî is what moves the marketís invisible hand and what has . . . generated so much public good for our financial markets. Both financial innovations and legal innovations may be taken too far, but this doesnít negate their positive aspects and the need to encourage them.
Thatís not an excuse for wrongdoing. If laws have been broken the violators should be sent away. But we should be aware that the excesses of prosecutors can cause at least as much, and possibly more, harm than the excesses of financial speculators.

Guilty verdict in the latest natural gas trader case

natural%20gas%20trading%20021208.jpgWe in Houston have become so jaded by dubious prosecutions of businesspeople that the guilty verdict in the latest natural gas trader case passed almost unnoticed late last week. The Department of Justice’s press release on the verdict is here, and the article of Tom Fowler — the Chron reporter who has done a good job of following these the trader cases — is here. My previous posts on the natural gas trader cases are here.
What is particularly troubling about the result in this particular case is that three relatively young men (the oldest of the three defendants is 48) with families and (at least up to this trial) excellent careers are now facing effective life prison sentences for essentially lying to a magazine. The prosecution’s alleged that the three traders provided false information to natural gas industry publications such as the Inside FERC Gas Market Report, which uses data from traders to calculate the index price of natural gas. Inasmuch as movement in index prices can theoretically affect the level of profits that traders can generate, the government’s theory was that the defendants provided false information so that they and their employer — El Paso Natural Gas Co. — could reap higher profits.
However, it remains unclear whether the magazines actually used the false information that the defendants provided to them or that the false trades actually affected the markets at all. No problem for the prosecution, though. The government contended that the market effect of providing the false information was irrelevant and that it only needed to prove that false information was reported to the magazines in order to make a case against the defendants.
So, key point to all of you businesspeople out there — don’t ever provide any false information to a publication. It really doesn’t make any difference whether the false information affects your business. The transmittal of false info is the crime.
I wonder if that applies to movie stars and tabloids, too? ;^)
As Fowler reports in his article, this was the second trial in what has been a five-year investigation of natural gas trading practices by Houston-based federal prosecutors and the Commodity Futures Trading Commission. A dozen Houston-area traders have been criminally charged in the trader cases and half of those have plea guilty. Two others — former Dynegy trader Michelle Valencia and former El Paso trader Greg Singleton — were convicted on several wire fraud counts but were acquitted on false reporting charges in 2006. They are still awaiting sentencing.

The winds of prosecutorial power

Ben%20kuehne.jpgWhen the Department of Justice decided to prosecute Arthur Andersen out of business despite a manifestly weak case, that confirmed that the creation of enormous wealth for thousands of employees and an impeccable reputation built over decades of fine work provide no insulation these days from the excesses of an rapacious prosecutor’s judgment.
Then, the DOJ decided to misapply a criminal law to prosecute several former executives of the social pariah Enron, which a vacuous mainstream media applauded without nary a mention of the dreadful implications that such a misuse of the state’s overwhelming prosecutorial power portends.
Given this backdrop, it was not particularly surprising that the government threatened to put large employers out of business unless they served up a few employees for the government to prosecute. Or that the government turned its prosecutorial power on the business news media as well as almost everything else. In the meantime, some of the leading purveyors of this prosecutorial campaign of abuse were being rewarded for their actions and competing for the highest offices in the land.
But now the government is turning its prosecutorial power toward pillars of the legal profession, first with regard to a Mayer Brown partner who performed work for Refco and more recently with regard to Ben Kuehne, who has long been one of the most-admired lawyers in the Miami legal community. Ellen Podgor analyzes the implications of the Kuehne indictment and Ashby Jones adds more context here.
So, after much of the legal profession has stood by for years while prosecutors trampled the rule of law in criminalizing unpopular business executives, where does the profession now “hide [with] the laws all being flat?.” Will the profession be able to stand upright in the winds of prosecutorial abuse that are blowing now? Stay tuned.

Another Underachieving Enron Task Force Alum Rings the Bell

Fresh off his victory in the Joseph Nacchio trial, former Enron Task Force prosecutor Cliff Stricklin is the latest former Enron Task Force prosecutor to land a cush job at a big firm. Sean Berkowitz and Andrew Weissmann, among other Task Force prosecutors, cashed in earlier.

The puff piece announcing Stricklin’s new job left out a few details of his work with the Enron Task Force. Stricklin was one of the lead prosecutors during the first Enron Broadband trial in which the Task Force was caught eliciting false testimony from one of the Task Force’s main witnesses (Ken Rice) and threatening two defense-friendly witnesses, Beth Stier and Lawrence Ciscon.

During the trial, U.S. District Judge Vanessa Gilmore angrily cut off Stricklin from further cross-examination of one of the defendants and rebuked him in open court when Stricklin violated one of the Judge’s limine orders.

That trial — which appeared to be a tap-in for the Task Force at the outset — ended in a crushing defeat for the Task Force. Stricklin parleyed his work in the Broadband case into a role on the prosecution team in the Lay-Skilling trial, where he proceeded to give a lesson in what not to ask on re-direct. That performance led to his appointment as the lead prosecutor in the Naccio case.

So, as Jeff Skilling fights for freedom from what amounts to a barbaric life sentence and many other lives have been shattered by the work of the Enron Task Force, the folks who cut corners to achieve those results are doing quite well, thank you.

Given the dismal track record and the dubious tactics of the Enron Task Force, it makes one wonder just what these big law firms would have offered up to former Task Force members if they had done a really good job?

The human cost of questionable prosecutions

Gary%20Mulgrew.jpgOne of the more discouraging aspects of the societal tide of resentment and scapegoating that has permeated the Enron related criminal prosecutions has been the utter lack of perspective or compassion regarding the horrendous human cost of those prosecutions.
We already know the horrendous financial cost (see also here) of those prosecutions. However, the the starkest example of the human cost is what happened to the family of the death of Ken Lay, who endured the decline of a loving father and grandfather as he defended himself against questionable charges that in a less-heated environment would likely never have been pursued. Almost equally barbaric is the unsupportable 24-year prison sentence assessed to former Enron CEO Jeff Skilling, whose children are threatened with the loss of their father for most of the rest of his life.
The Enron-related criminal prosecutions have thrown numerous other families into turmoil, such as those of the four former Merrill Lynch executives (see also here) who were unjustly jailed for a year in the Nigerian Barge case. Dozens more have lived their lives in fear over the past several years as Enron Task Force prosecutors routinely threatened prosecutions against most anyone who could provide exculpatory testimony for a defendant looking down the Task Force’s gun barrel.
But the enormous human toll of these prosecutions was reinforced by this London TimesOnline article, which reports on the heartbreaking child custody case involving the daughter of Gary Mulgrew, one of the former UK bankers known as the NatWest Three who recently entered into a plea bargain of dubious charges against them. Turns out that Mulgrew — while forced to live in the US away from his family for most of the past two years — has had to endure the emotional trauma of having his six-year-old daughter taken by his estranged ex-wife to live in Tunisia with the ex-wife’s new boyfriend, “Abdul.” Based on the difficulty of attempting to enforce Western legal obligations in an Islamic legal system, Mulgrew and his family must be going through a living hell in trying to rescue his daughter from a repressive Islamic culture.
To my knowledge, none of this human drama has been mentioned in the US mainstream media, which has moved on from Enron in its inexhaustible search for the next scapegoats. Wasn’t the damage to families and careers that the government and the mainstream media left in the wake of the Enron-related prosecutions enough to satiate our resentment?
Sadly, I don’t think so.

The Power of Myths

A common topic on this blog has been the power of anti-business myths within American society.

Take Enron, for example. We all know how the myth played out. Enron, which was one of the largest publicly-owned companies in the U.S., was really just an elaborate financial house of cards that a massive conspiracy hid from innocent and unsuspecting investors and employees.

The Enron Myth is so widely accepted that otherwise intelligent people reject any notion of ambiguity or fair-minded analysis in addressing facts and issues that call the morality play into question. The primary dynamics by which the myth is perpetuated are scapegoating and resentment, which are common themes of almost every mainstream media report on Enron.

The mainstream media — always quick to embrace a simple morality play with innocent victims and dastardly villains — was not about to complicate the story by pointing out that the investors in Enron could have hedged their risk of loss by buying insurance quite similar to that which Enron developed in creating their wealth in the first place.

Instead of attempting to examine and tell the nuanced story about what really happened at Enron, much of the mainstream media simply became a part of the mob that ultimately contributed to death of Ken Lay and hailed the barbaric 24 year sentence of Jeff Skilling.

Ambitious prosecutors, given wide latitude to obtain convictions of key Enron executives regardless of the evidence, gladly took advantage of the firestorm of anti-Enron public opinion to lead the mob.

Consequently, as Wall Street continues to endure massive equity write-downs that dwarf the $1.1 billion non-recurring charge against earnings that triggered Enron’s demise after the 3rd quarter of 2001, I was somewhat surprised to read this common sense analysis from NY Times columnist, David Brooks:

There is roughly a 100 percent chance that weíre going to spend much of this year talking about the subprime mortgage crisis, the financial markets and the worsening economy. The only question is which narrative is going to prevail, the Greed Narrative or the Ecology Narrative.

The Greed Narrative goes something like this: The financial markets are dominated by absurdly overpaid zillionaires. They invent complex financial instruments, like globally securitized subprime mortgages that few really understand. They dump these things onto the unsuspecting, sending destabilizing waves of money sloshing around the globe. Economies melt down. Regular people lose jobs and savings. Meanwhile, the financial insiders still get their obscene bonuses, rain or shine.

The morality of the Greed Narrative is straightforward. A small number of predators destabilize the economy and reap big bonuses. The financial system is fundamentally broken. Government should step in and control the malefactors of great wealth.

The Ecology Narrative is different. It starts with the premise that investors and borrowers cooperate and compete in a complex ecosystem. Everyone seeks wealth while minimizing risk. As Jim Manzi, a software entrepreneur who specializes in applied artificial intelligence, has noted, the chief tension in this ecosystem is between innovation and uncertainty. We could live in a safer world, but weíd have to forswear creativity. [. . .]

The Ecology Narrative is not morally satisfying. I wouldn’t bet on its popularity as a backlash against Wall Street and finance sweeps across a recession-haunted country. But the Ecology Narrative has one thing going for it. It happens to be true.

Along those same lines, this Landon Thomas/NY times story reports on how two Wall Street executives who were intimately involved in $34 billion in write-downs remain reasonably hot properties on the Wall Street employment market. The Greed Narrative apparently hasn’t caught up with those two yet, either.

But not so fast. This NY Times article reports that New York attorney general Andrew Cuomo, who replaced Eliot Spitzer as the Lord of Regulation, is currently putting the squeeze on a company that analyzed the quality of home loans for investment banks to provide evidence to prosecutors that the banks had detailed information that they did not reveal to investors about subprime mortgage risk. So, maybe that Greed Narrative still has legs after all.

But for the final word, don’t miss this Larry Ribstein post in which he exposes NY Times columnist Gretchen Morgenson’s stubborn adherence to the Greed Narrative even when it is clear from the subject of the story (in this case, the troubles of retailer Sears) that the narrative doesn’t fit.

In short, Morgenson is not one to allow the facts to get in the way of spinning a Greed Narrative morality play.